Sealing, Site Visits, and a Lender's Certification
A sole practitioner holds an AIA B101-2017 agreement, with California amendments, for a 22,000-square-foot retail and office building. During two months of medical leave, an unlicensed project designer completed the construction documents; on returning, the principal sealed the set without reviewing the electrical and mechanical coordination sheets, and the permit issued. On site, the contractor placed the second-floor topping slab on a Friday; the architect's first visit was the following Tuesday, after the slab was finished. The owner's lender now requires the architect to certify that 'all work complies with the approved drawings and specifications' before releasing the final draw, and the owner wants the architect to sign a change order waiving the contractor's liquidated damages for a roof submittal delay.
1. Evaluate the seal on the coordination sheets. What should the principal have done, and what should be done now?
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- A licensee may sign and seal only documents prepared by the licensee or under the licensee's responsible control. Responsible control means the actual exercise of control over content and professional quality - the ability to review and the fact of review. Sealing a set on return from leave, unreviewed, is the opposite of responsible control, whatever the internal office arrangement.
- What should have happened: the principal reviews and coordinates the sheets before sealing, engages the appropriate licensed engineers for the disciplines requiring licensed design, and documents the review. Unlicensed staff may draft; they may not be the only eyes on sealed work.
- What to do now: perform the coordination review immediately, correct errors by addendum or change order, and involve licensed electrical and mechanical engineers where their scope was drafted in-house. Do not backdate, do not issue a 'no change' letter to paper over the gap, and do not sign a reissued set as of the original date.
- If the review shows a code or life-safety problem in work already constructed, that becomes a disclosure obligation to the owner and the building official, not an internal matter. The seal is the architect's personal professional act and carries discipline exposure under the Architects Practice Act independent of any civil liability.
2. Draft the substance of the lender's certification. What can the architect sign, what can't be signed, and what about the slab?
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- The requested language - that all work complies with the drawings and specifications - cannot be signed by anyone who was not present for every installation. Under the standard agreement the architect makes site visits to observe the progress and quality of the work, reports known deviations and defects, and does not guarantee contractor compliance. Observation is not inspection.
- Signable form: 'On the basis of site visits made during construction, the architect has no knowledge of material nonconformance with the contract documents, except as noted.' Attach the exceptions list. Decline the unqualified version in writing and offer the qualified version promptly - lenders accept it routinely.
- The topping slab: the Tuesday visit cannot speak to Friday's placement. The correct move is to determine whether structural observation and special inspection were required for that placement, obtain the inspection reports and the contractor's placement records, and report to the owner whether the required observations and tests exist. If they do not, say so - that is a known condition and must not be buried under a certification.
- Additional site visits to satisfy the lender are additional services, not free scope, and the request should be handled as a written scope and fee adjustment.
3. The owner asks the architect to sign a change order waiving the liquidated damages. How should the architect handle it?
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- Separate two things: the time determination and the money waiver. Under the standard agreement the architect may determine extensions of time and may certify amounts due on the basis of the record; the architect does not waive the owner's monetary claims. A liquidated-damages waiver is a commercial settlement between owner and contractor and should be documented as such, with counsel.
- If the delay is attributable to the architect's own submittal review, the architect has a conflict and should not act as the neutral decision-maker on that claim. Say so and recommend independent review.
- If the architect participates at all, the signature should certify only the factual sequence - submittal received, review returned, dates - and the owner's direction, and should be contemporaneous. Signing a document that recites a waiver the owner later regrets, or that characterizes the cause of delay in a way the record does not support, is how a design professional acquires a claim it cannot defend.
- In all three issues the same discipline applies: write down what was and was not done, in real time, and refuse to let a signature attest to something the architect did not do.